So a recent comment I made got me thinking to myself, “Self, what about precedent? What about stare decisis? And why do you keep watching Ultimate Beastmaster, even though, objectively, it is the worst show ever made?”

Well, I can answer two of those three questions. So, a very brief guide to precedent and stare decisis.

America (and those countries similar to the UK/England) employ a “common law” system, which means (SIMPLIFYING HERE) that the law evolves over time, through a series of court decisions. Earlier decisions are precedent for later decisions. Stare decisis (roughly translated- measure twice & cut once, or, um, stand by your decision ... according to Tammy Wynette) is simply a fancy name to refer to the doctrine that courts are using to refer to precedent.

So how does it work in practice? Well, there are different types of “authorities” for law; many of them are binding on the court (this means that the Court has to follow them) without being “precedent” or stare decisis. For example, the United States Constitution, or a State Constitution, or a statute, or even the rules of evidence or procedure, are “binding” on the court, but wouldn’t be referred to as precedent. Instead, we would be looking at other court cases. Here is where it gets confusing.

There are two primary types of precedent- strong (or vertical) and weak (or horizontal).

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Strong. The primary focus of litigation, and courts, is finding “strong” or “vertical” precedent. This means that another court, higher in the food chain, already decided the issue. A precedent was established, and lower courts have to apply that precedent. Now, this can take many forms. But the easiest way to think about this is to think about the Supreme Court (as in, the United States Supreme Court). If the Supreme Court rules on a constitutional issue, then all lower courts must apply the Supreme Court ruling. There may be some “play” in the decision; after all, no decision can encompass all the facts that will come up in the vagaries of life, but lower courts aren’t allowed to say, “You know what, we’re going to rule in a completely opposite direction.” Well, for the most part. It’s complicated. But that’s strong/vertical precedent/stare decisis. Lower courts applying the precedent of a higher court.

But this is the most important form of precedent and stare decisis, because it’s the building blocks of the law. Most of “the law” occurs at the trial courts, and the trial courts are applying the law decided (and published) in the appellate courts.

Weak. This is where the fun is. Weak, or horizontal precedent, is a court applying its own precedent. Various courts have various rules for this; for example, with some appellate courts, a “panel” (or three judge) decision is binding on the appellate court unless and until it is overruled by the whole (en banc) court. Which means that it is strong precedent, until it isn’t. But the general rule is that the decision is as binding on the court in question ... as the court wants it to be.

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Wait, what? So, let’s use the Supreme Court again as an example. Once the Supreme Court decided something, that decision is binding (weak, or horizontal precedent) on the Supreme Court until the Supreme Court says it no longer is binding (the Supreme Court overrules the past decision). So, in a certain sense, stare decisis is exactly as binding on the Supreme Court as five justices want it to be.

But ... that’s not the totality of what is really happening. The law truly is small-c, Burkean conservative, and while five justices (of the nine, of course) could overrule past precedent at any time, they try to keep in mind that they shouldn’t. So some of the factors they consider when seeing if they should overrule something are-

a. Is it a constitutional decision? This is going to seem weird, but constitutional decisions are easier to re-visit than statutory ones. The rationale for this makes perfect sense once you understand it, however. The only people that can change a constitutional ruling/interpretation are the Supreme Court (absent amendment), whereas Congress can change a statute at any time. For an example of this, think back to the case involving equal pay (aka, Lily Ledbetter). To the extent that the Court was “wrong” on the statute in Ledbetter v. Goodyear Tire & Rubber Co., Congress changed the statute two years later with the Lily Ledbetter Fair Pay Act. So stare decisis carries more weight with statutory decisions than it does constitutional ones because it is easier for someone else (the legislature) to “correct” the decision without the Court needing to.

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b. Reliance interests. One value in having the law change slowly (when it changes at all) is that it fosters reliance interests. People can rely on the law being relatively unchanged. If you organize your affairs, or your business, assuming the law is going to be a certain way, you shouldn’t have to worry about the Supreme Court, one day, upending it to the detriment of your reliance interests. While this often comes up when discussing money and property, one of my favorite examples involves Miranda rights. You know what they are, because we all do (cue Law & Order theme song). Anyway, there had been a sizable movement since Miranda v. Arizona to get rid of Miranda rights, because they weren’t based on the Constitution. It was sort of a “holy grail” for certain types. Well, they finally got their chance in Dickerson v. United States in 2000. But rather than get rid of Miranda, the Supreme Court (over dissents from Scalia and Thomas, because, again, of course) re-affirmed Miranda, because of stare decisis and because it had become a part of the national culture; in essence, society had come to rely on them. (As a side note, part of the national culture is slightly different than pure reliance interests, which are often contractual, but can be viewed as simply “cultural” reliance interests).

c. Things change. This is really the big one. Over time, things change. Decisions get hollowed out, or “construed” until they mean almost nothing. Or, perhaps, the underlying facts and societal circumstances that led to the first decision have changed so much that it needs to be re-visited. Finally, there are times when a court (or the Court) makes a decision, and sees that it doesn’t work nearly as well in practice as it did when they were dreaming it up, and it needs to change ... now. But this is an amorphous category, usually most evident either in hindsight or when the Supreme Court suddenly requests briefing on the continued validity of a past opinion.

Anyway, the tension with “weak” precedent should be apparent. The law must change with time, but should also be resistant to change. Or, put in a less satisfying way, you should be able to depend on the Court’s prior decisions, until you can’t.

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Persusasive. This is the category that generally confuses the most people. Persuasive authority is not precedent, and it doesn’t fit within the stare decisis framework, but it is commonly used. And it can be anything; cases, law review articles, treatises on the law, even a blog post. Anything can be persuasive, but some things are more persuasive than other things.

For example, let’s say you are in a state court. By your state rules, you are only bound by the appellate court for your area and the state supreme court. Now, let’s assume that there is no binding law from either of those sources, but you found a case that’s on-point from a different appellate court within your state. That’s going to be very, very persuasive.

Or, same scenario, but a federal court (a trial court) within your state has a published opinion on that issue of state law. Again, not binding, but likely very very persuasive.

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On the other hand, let’s say that you find an opinion from the Constitutional Court of South Africa. It will probably not be persuasive, at all, to a trial court in Alabama.

This goes with all the territory. The Restatements of Law can be somewhat persuasive, or not at all persuasive, depending on the circumstances; courts are more likely to listen when it comes to issues involving agency than, say, someone trying to explain why the Model Penal Code should apply to the state criminal statutes.